Religious freedom and nonpublic fora

[Eugene Volokh]

    I suppose I take a different view:  It seems to me that to make a
government office work, not just most efficiently but even reasonably
efficiently, we have to accept restrictions on speech that's
offensive, distracting, and whatever else.  Government offices are
not places for "wide-open, robust debate" (cf. NYT v. Sullivan; they
are not places where we want speech that "induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even
stirs people to anger" (cf. Terminiello).  They are places to get the
job done.  And people who are filled with unrest, dissatisfied, and
angry aren't very good public servants for you and me.  Thus, the
picketing, no matter how small and peaceful, outside the manager's
office continues to strike me as a very easy case for government
restriction.

    Now this doesn't answer the question of how broad the substantive
scope of permissible speech restrictions might be, or what sorts of
procedural requirements should be imposed.  But it does suggest that
the rules *must* be different, and quite considerably more
deferential, when the government is acting as proprietor of a
nonpublic forum.

    By the way, how would Marie's argument about nonpublic fora apply
to the government acting as employer, given that the government's
funds, no less than the government's real estate, are held in trust
for all of us?



Marie Failinger writes:

> Being an irresponsible ivory tower academic, I am not willing to agree
> with Prof. Volokh to the government's ability to ban the picketers outside
> the manager's office altogether.  I think the bureaucrat in charge could
> say, no signs with sticks on them,  not more
> than 5, nothing over X decibels, don't block the hallway, you have 10
> minutes to picket, not in bathrooms where people have their clothes off,
> not inside individual offices where they expect privacy, not in the area
> where clients are coming in (to
> preserve confidentiality for welfare clients, etc.) and give other TPM
> restrictions that would permit the
> government to protect its interests in worker security and efficiency.
> But what is the rationale for giving discretion for a total ban?  In that
> too-long article I sent, Eugene, my claim was that this simply reinforces
> government workers'
> (natural) instinct  that government and its property belongs to THEM
> and not to everyone, with all of the implications for a government ethic
> of public service that this entails.
>
> Yes, it does cost time and effort to make these rules . . . .just as it
> costs time and effort to make any rules that are precise enough to be
> worthwhile in our complex society.  Why should we let the government beg
> off (or shift to the courts) the responsibility of creating precise and
> complex rules to further the value of speech when
> they sure enough can do it when it comes to Medicare bills and protection
> of trees?  Is speech so much less valuable?  Or do we fear hidden
> animosity coming through TPM restrictions so much that we are willing to
> settle for an all-or-nothing regime for speech in government offices,
> courtrooms, schools, prisons, etc., etc.
>
> Marie Failinger
> Hamline Law School
>
> On Thu, 18 Dec 1997, Eugene Volokh wrote:
>
> >     For instance, I take it we'd agree that the government can't ban
> > peaceful, nonobstructive picketing outside a government building, even
> > if the result is disruption caused by the communicative (either
> > distractive, offensive, or persuasive) impact of the speech -- for
> > instance, a labor picket line that leads employees to be embarassed
> > or otherwise reluctant to cross it, and that thus decreases the
> > government office's effectiveness.
> >
> >     But I take it that we'd also agree that the government can ban
> > such peaceful picketing in, say, the corridor outside a manager's
> > office, even if the picketing is peaceful and doesn't block the
> > hallway.  There the government *is* allowed to act to prevent
> > disruption caused by the communicative (distractive, offensive, or
> > persuasive) impact of the speech.  Never mind that the picketers are
> > taxpayers, too, and that their taxes paid for this particular chunk
> > of government property.  When the government is acting as proprietor
> > of this kind of property, it's entitled to restrict access in ways
> > that it wouldn't if it were acting as sovereign regulating *private*
> > property, or acting as proprietor of public forum property.
> >
>

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